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Farmers' RightsKamalesh Adhikari

Since the early 1980s, there has been a series of negotiations

on how countries need to promote the conservation and

development of plant genetic resources for food and agricul-

ture, and why and how they need to facilitate access to such

resources for further breeding and research. Similarly,

important decisions on what types of farmers' rights they need

to protect for ensuring equity in the use of plant genetic

resources for food and agriculture have also been made. In

2001, the International Treaty on Plant Genetic Resources for

Food and Agriculture was adopted to ensure that its Parties

implement a multilateral system of access and benefit sharing

for 35 food crops and 29 forage plants, and take national

measures, among others, to realize farmers' rights. This policy

brief highlights the developments in the global negotiations on

the conservation, development and use of plant genetic

resources for food and agriculture, and the realization of

farmers' rights. In the light of a new resolution on farmers'

rights, adopted at the Third Session of the Governing Body of

the Treaty in June 2009, the brief also suggests some strate-

gies that the Treaty's Contracting Parties—mainly developing

and least-developed ones—should pursue for the protection

and promotion of farmers' rights at national and global levels.

Phot

os: K

amal

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Adhi

kari

POLICY BRIEF, NO. 18, 2009, SAWTEE

global contexts, negotiations and strategies

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FGlobal contexts and concernsOver the past five decades, the use of modern biotechnology in

plant variety development, and the application of intellectual prop-

erty rights (IPRs) for plant variety protection have strongly

favoured the corporate seed sector to establish monopolies over

seeds. Mainly since 1961, the Convention of the International

Union for the Protection of New Varieties of Plants (UPOV) has

been largely promoting global cooperation for the strengthening

of plant breeders' rights over new seeds. Following the establish-

ment of the World Trade Organization (WTO) in 1995, the multilat-

erally binding IPR rules of the Agreement on Trade-Related As-

pects of Intellectual Property Rights (TRIPS) have further strength-

ened the corporate sector to entrench monopolies over the pro-

duction, reproduction and sale of IPR-protected seeds (Box 1). In

addition, “TRIPS-plus” rules, including the obligation to join UPOV,

in the North-South bilateral and regional trade agreements and

WTO accession packages for new members have also been used

to make farmers reliant on IPR-protected seeds.

It is disheartening that a handful of multinational seed companies

are transforming farmers from “seed owners” to mere “licencees

and consumers” of IPR-protected seeds. In 2006, six multination-

als—Monsanto, DuPont, Syngenta, Dow, Aventies and Grupo Pul-

sar—had owned 74 percent of the patents that were taken on

major food crop varieties, including those of rice, wheat, maize

and sorghum, and just 4 multinational companies were holding 44

percent of over 9,000 patents that were taken on staple crop

varieties.1 And the trend continues with more concentration and

consolidation of companies in the seed as well as agrochemical

business (Table 1).

Many African, Asian, the Caribbean and Latin American countries

have expressed reservations about these developments. They

view that UPOV, TRIPS and “TRIPS-plus” rules are not supportive

of farmers’ rights. Some of their major concerns relate to the

threat of biopiracy, and the restrictions they impose on farmers’

rights to, among others, save, use, exchange and sell seeds.

Global negotiations on biodiversityMainly since the early 1980s, technology-rich developed coun-

tries and biodiversity-rich developing countries have been debat-

ing ways to balance the interests of the corporate seed sector

and farmers. As a major global initiative to address their interests,

the adoption of the Convention on Biological Diversity (CBD) in

1992 could be seen as an important outcome (Box 2).

The Convention has three objectives: conservation of biodiversity

and its components, their sustainable use, and sharing of the

benefits arising out of the use of genetic resources. The Conven-

tion establishes a set of mechanisms and principles for the conser-

vation and sustainable use of biological and genetic resources.

According states sovereign rights over their resources and callingfor the protection of the rights of local and indigenous communi-ties, the CBD not only obliges states to facilitate access to genetic

resources but also to legitimize the equity principles of obtaining“prior informed consent” before accessing genetic resources and“sharing the benefits" derived from such access.

However, given the complexities seen in the global negotiations atthat time, the CBD was not the answer to all the concerns that the

negotiating countries were raising. Particularly there were still

conflicting interests on how to facilitate access to plant genetic

resources that are crucial for further research and breeding, and

how to recognize farmers' rights. It was for this reason that,

when the CBD was under consideration and even after it was

adopted, negotiations2 within the Food and Agriculture Organiza-

tion of the United Nations (FAO) continued to focus on outstand-

ing matters, for example:

how to deal with access to ex situ collections not acquired in

accordance with the CBD (for example, pre-1992 collections of

genetic resources held by international gene banks); and

how to balance the interests of breeders and farmers so thataccess to and use of plant genetic resources for food andagriculture were facilitated for global food security.

Box 1: About the UPOV Convention and the TRIPS Agreement

WTO/TRIPS: The WTO, with its binding multilateralagreements and decisions, and sanction-based mechanism,is the most powerful international trade body of thepresent time. So far, 153 countries have become itsmembers. The enforcement of the WTO's TRIPS Agreementhas severe implications for farmers' rights. Many developingand least-developed countries argue that TRIPS hascreated a legal route for inventors to obtain “excessivelybroad patents” or breeders’ rights over new seeds. Suchcountries have made several submissions to the Council ofTRIPS to review TRIPS provisions and make the Agreementcompatible with the CBD. More than 80 WTO members havealso been calling for the inclusion of a provision—disclosurerequirement—in TRIPS so that IPR applicants disclose theorigin and source of resources used in inventions, andprovide the evidence of benefit sharing.

UPOV: UPOV is an intergovernmental organization. Theobjective of the UPOV Convention is to protect new plantvarieties by IPRs, for example, plant breeders' rights.UPOV has 67 members. Most developed countries havejoined UPOV as it promotes industrial farming andstrengthens private control over the global seed market.However, it is not supportive of developing and least-developed countries where the protection of farmers'rights is a major concern. The UPOV Convention hasundergone three revisions since it was signed in 1961. The1972, 1978 and 1991 amendments to the UPOV Conven-tion have progressively strengthened the protectionafforded to plant breeders. UPOV 1991 provides thehighest level of protection to breeders, severely diluting“Farmers’ Privilege” and restricting farmers’ rights to save,reuse, exchange and sell seeds.

Adapted from: www.upov.int; www.wto.org; www.sawtee.org

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Exchange of plant genetic resourcesIt was made clear that states may impose only such minimum

restrictions on the free exchange of materials as are necessary

for them to conform to their national and international obligations.

This meant that states were obliged to facilitate access to plant

genetic resources without creating unnecessary obstacles.

Breeders' rightsIt was mentioned that plant breeders’ rights as provided for under

UPOV are not incompatible with the International Undertaking.

Recognition of the concept of farmers' rightsIt was highlighted that states adhering to the Undertaking recog-

nize the enormous contribution that farmers of all regions have

made to the conservation and development of plant genetic re-

sources, which constitute the basis of plant production through-

out the world, and which form the basis for the concept of farm-

ers’ rights.

Following this, FAO Resolution 5/89 endorsed the concept of

farmers' rights and stated that "farmers' rights mean rights aris-

ing from the past, present and future contribution of farmers in

conserving, improving and making available plant genetic re-

Global negotiations on farmers’ rightsIn 1983, the International Undertaking on Plant Genetic Resourceswas adopted at the FAO Conference. Its objectives were to en-

sure that plant genetic resources would be explored, preserved,evaluated and made available for plant breeding and scientificpurposes. The Undertaking was based on the principle that plant

genetic resources were a common heritage of humankind andthus were to be preserved, and to be made freely available foruse, for the benefit of present and future generations.

However, due to this principle, technology-rich and biodiversity-rich countries entered into conflict. Technology-rich countries

wanted the Undertaking to recognize IPRs so that IPR-protectedseeds would not become part of the common heritage. On theother hand, biodiversity-rich countries stated that the Undertak-

ing needed to address farmers' rights, including their rights toparticipate in the sharing of the benefits arising out of the use ofgenetic resources, and to save, exchange, reuse and sell seeds.

Following a series of negotiations on the need to balance theinterests of both groups of countries, in 1989, an agreed inter-pretation of the Undertaking—FAO Resolution 4/89—recognized

both plant breeders' rights and farmers' rights by addressing,among others, the following issues.

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Table 1: Multinationals' control over global seed and agrochemical markets

Company US$ % of globalmillion seed market

1 Monsanto (USA) 4,964 23

2 DuPont (USA) 3,300 15

3 Syngenta (Switzerland) 2,018 9

4 Groupe Limagrain (France) 1,226 6

5 Land O’ Lakes (USA) 917 4

6 KWS AG (Germany) 702 3

7 Bayer Crop Science (Germany) 524 2

8 Sakata (Japan) 396 <2

9 DLF-Trifolium (Denmark) 391 <2

10 Takii (Japan) 347 <2

Total 14,785 67

Data source: Agro World Crop Protection News, August 2008

Company US$ % of global agro-million chemical market

1 Bayer (Germany) 7,458 19

2 Syngenta (Switzerland) 7,285 19

3 BASF (Germany) 4,297 11

4 Dow AgroSciences (USA) 3,779 10

5 Monsanto (USA) 3,599 9

6 DuPont (USA) 2,369 6

7 Makhteshim Agan (Israel) 1,895 5

8 Nufarm (Australia) 1,470 4

9 Sumitomo Chemical (Japan) 1,209 3

10 Arysta Lifescience (Japan) 1,035 3

Total 34,396 89

Share in agrochemical sales, 2007Share in seed sales, 2007

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sources, particularly those in the centres of origin/diversity. These

rights are vested in the International Community, as trustee for

present and future generations of farmers, for the purpose of

ensuring full benefits to farmers, and supporting the continua-

tion of their contributions...”

Since such recognition of the concept of farmers’ rights provided

a counterbalance to breeders' rights, it became a source of in-

tense debate. While the IPR system was clear about how to re-

ward breeders and provide protection to plant varieties, the ways

to realize farmers' rights and whether their rights had to be vested

in the international community as trustee were still a matter of

negotiations.

Negotiations for the ITPGRFASince the CBD was not able to address pre-CBD accessions, as

well as farmers' rights pertaining to plant genetic resources, a

resolution on the interrelationship between the CBD and the pro-

motion of sustainable agriculture was adopted in 1992. And since

the International Undertaking on Plant Genetic Resources was

not legally binding, the resolution urged the FAO to commence

negotiations for a legally binding international regime on the man-

agement and use of plant genetic resources for food and agricul-

ture, and in this regard, to also address farmers’ rights. After a

series of intense negotiations within the FAO, in 2001, the Interna-

tional Treaty on Plant Genetic Resources for Food and Agriculture

(ITPGRFA) was adopted (Box 2). This accord, representing a legally

binding international commitment to the improvement of the world’s

key food and feed crops, deals with farmers’ rights in the preamble,

in a separate chapter and in two other articles. In particular, in its

Article 9, the Treaty recognizes the following farmers’ rights:

protection of traditional knowledge relevant to plant genetic

resources for food and agriculture;

the right to equitably participate in sharing benefits arising

from the utilization of plant genetic resources for food and

agriculture;

the right to participate in making decisions, at the national

level, on matters related to the conservation and sustainable

use of plant genetic resources for food and agriculture; and

the right to save, exchange, reuse and sell farm-saved seeds.

With regard to the implementation of these rights, the Treaty,

however, gives the responsibility to national governments. This is

one of the weakest aspects of the Treaty as not all Parties have the

obligation to implement farmers’ rights. The Treaty states, “...in

accordance with their needs and priorities, each Contracting Party

should, as appropriate, and subject to its national legislation, take

measures to protect and promote Farmers’ Rights...” Hence, ever

since the adoption of the Treaty in 2001 and its entry into force in

2004, the realization of farmers’ rights has remained a major issue

of concern. The divisions among its Contracting Parties with regard

to the interpretation of Article 9 and hence to the implementation of

farmers’ rights are not near convergence, though some remarkable

initiatives have been taken at the Treaty's Governing Body ses-

sions.

ITPGRFA's Governing Bodynegotiations on farmers’ rightsAt the First Session of the Governing Body of the Treaty on 12-16

June 2006 in Spain, a group of developing countries and Norwayproposed the inclusion of the topic of farmers’ rights on the Work-ing Agenda of the Governing Body. Then, at the Second Session

of the Governing Body, held from 29 October to 2 November 2007in Italy, a resolution on farmers’ rights was adopted. It is impor-tant to note that the initial resolution text, proposed by develop-

ing countries (G77 and China), had come under sharp criticism

from several industrialized nations, and to finalize the resolution,

intense negotiations were conducted in a contact group. Finally,

acknowledging that there was uncertainty in many countries as to

how farmers’ rights can be implemented and that the challenges

related to the realization of farmers’ rights are likely to vary from

country to country, the first resolution on farmers' rights was

adopted in which, among others:

Box 2: About the CBD and the ITPGRFA

ITPGRFA: After more than 15 sessions of the FAOCommittee on Genetic Resources and its subsidiary bodies,the ITPGRFA was approved during the FAO Conference in2001. This legally binding Treaty came into force on 29 June2004 and 120 countries are its Contracting Parties. TheTreaty only covers plant genetic resources for food andagriculture and does not deal with other plant geneticresources. Unlike the CBD, it sets up a multilateral system ofaccess and benefit sharing. The application of the Treaty’smultilateral system is limited to 64 plant genetic resources—food and forages—that are fundamental to food securityand are either in the public domain or are under the hold ofnatural and legal persons. The Treaty also deals withfarmers' rights pertaining to plant genetic resources for foodand agriculture and traditional knowledge, including theirrights to save, exchange, reuse and sell farm-saved seeds.

CBD: Negotiated under the auspices of the United NationsEnvironment Programme, the CBD was opened forsignature on 5 June 1992 at the Rio Earth Summit, and itentered into force on 29 December 1993. The Conventionis legally binding for its Contracting Parties. So far, 190countries and the European Community are its members.The Convention provides a framework for the implementa-tion of access and benefit sharing, and calls for facilitatingaccess to genetic resources, which has to be bilateral, andbased on mutually agreed terms between the resource-providing and -receiving countries. In recognition of thesovereign rights of states over their biological and geneticresources, national governments, subject to their nationallaws, are conferred the authority to determine access togenetic resources, and protect the rights of local andindigenous communities.

Adapted from: www.cbd.int; www.planttreaty.org; www.sawtee.org

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Box 3: Third Session's Resolution on Farmers' Rights

The Governing Body,

(i) Recalling the recognition in the International Treaty of the

enormous contribution that local and indigenous communi-

ties and farmers of all regions of the world have made, and

will continue to make, for the conservation and development

of plant genetic resources as the basis of food and agricul-

ture production throughout the world;

(ii) Recalling the importance of fully implementing Article 9 of

the International Treaty;

(iii) Recalling also that according to Article 9 of the Interna-

tional Treaty, the responsibility for realizing Farmers’ Rights,

as they relate to plant genetic resources for food and agri-

culture, rests with national Governments and is subject to

national law;

(iv) Acknowledging that there is uncertainty in many coun-

tries as to how Farmers’ Rights can be implemented and that

the challenges related to the realization of Farmers’ Rights

are likely to vary from country to country;

(v) Recognizing that exchange of experiences and mutual

assistance between Contracting Parties can significantly con-

tribute to making progress in the implementation of the pro-

visions on Farmers’ Rights in the International Treaty;

(vi) Recognizing the contribution the Governing Body may

give in support of the implementation of Farmers’ Rights;

(vii) Recalling Resolution 2/2007 adopted by the Second Ses-

sion of the Governing Body, in which Contracting Parties and

relevant organizations were encouraged to submit their views

and experiences on Farmers’ Rights as set out in Article 9 of

the International Treaty;

(viii) Recalling also that the Governing Body through Resolu-

tion 2/2007 decided to consider these views and experi-

ences as a basis for an agenda item on its Third Session to

promote Farmers’ Rights at the national level;

(ix) Noting that the number of contributions on views and

experiences received by the Secretariat has been limited;

(x) Based on the received views and experiences from Con-

tracting Parties and other organizations;

(xi) Invites each Contracting Party to consider reviewing and,

if necessary, adjusting its national measures affecting the

realization of Farmers’ Rights as set out in Article 9 of the

International Treaty, to protect and promote Farmers’ Rights.

(xii) Encourages Contracting Parties and other relevant or-

ganizations to continue to submit views and experiences on

the implementation of Farmers’ Rights as set out in Article 9 of

the International Treaty, involving, as appropriate, farmers’

organizations and other stakeholders;

(xiii) Requests the Secretariat to convene regional workshops

on Farmers’ Rights, subject to the agreed priorities of the

Programme of Work and Budget and to the availability of

financial resources, aiming at discussing national experiences

on the implementation of Farmers’ Rights as set out in Article

9 of the International Treaty, involving, as appropriate, farmers’

organizations and other stakeholders;

(xiv) Requests the Secretariat to collect the views and expe-

riences submitted by Contracting Parties and other relevant

organizations, and the reports of the regional workshops as

a basis for an agenda item for consideration by the Govern-

ing Body at its Fourth Session, and to disseminate relevant

information through the website of the International Treaty,

where appropriate; and

(xv) Appreciates the involvement of farmers’ organizations in

its further work, as appropriate, according to the Rules of

Procedure established by the Governing Body.

Source: www.planttreaty.org

Prat

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Contracting Parties and other relevant organizations were en-

couraged to submit views and experiences on the implementa-

tion of farmers’ rights, involving, as appropriate, farmers’ or-

ganizations and other stakeholders.

The Secretariat of the Governing Body was requested to col-

lect these views and experiences as a basis for an agenda item

for consideration by the Governing Body at its Third Session to

promote the realization of farmers’ rights at the national level.

As a result, in the Third Session of the Governing Body, held on 1-

5 June 2009 in Tunisia, farmers’ rights was again a major issue for

discussion. Although the number of submissions of the views and

experiences on farmers’ rights was limited, Brazil, on behalf of

Africa, Latin America and the Caribbean, proposed a new resolu-

tion on farmers’ rights. The resolution called upon the Governing

Body to consider ways to support national efforts on farmers’

rights. However, Canada criticized this idea and, together with

Australia, stressed that as per the Treaty, the responsibility for

realizing farmers’ rights rests with national governments.

Similarly, there was an intense debate on another submission made

by Brazil and other developing countries. These countries demanded

that the Governing Body invite the Contracting Parties to review,

and as appropriate, adjust seed regulations with a view to protect-

ing farmers’ rights to save, use, exchange and sell farm-saved

seeds. This position had its origins in the fact that together with or

even in the absence of IPR laws, in many developing and least-

developed countries, seed regulations have severely restricted farm-

ers' rights, including their rights to save, exchange, reuse and sell

seeds. However, due to the political economy factors, Canada and

a few other Parties such as the European Union (EU) and Saudi

Arabia expressed their reservations. While Saudi Arabia wondered

how the Governing Body could ask countries to change their na-

tional seed laws, the EU and Canada suggested some changes in

the proposed text. At the end of the negotiations, the consensus

among the Parties was finally reached on the following text: “The

Governing Body invites each Contracting Party to consider review-

ing, and, if necessary, adjusting its national measures affecting the

realization of Farmers’ Rights as set out in Article 9 of the Interna-

tional Treaty, to protect and promote Farmers’ Rights”.

It is important to note that despite the deletion of “seed regula-

tions”, the inclusion of which was a major demand made by devel-

oping countries, the above text—contained in paragraph XI of the

Third Session's resolution on farmers' rights—is not weak (Box 3).

The inclusion of “national measures” in the text of the new resolu-

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© 2009, SAWTEE, Design: Effect, Printed at Jagadamba Press, Hattiban, Lalitpur

The author is Research Director at SAWTEE. Views expressed are of the author and do not necessarily reflect the position of SAWTEE or its member

institutions. This is a publication under SAWTEE's Regional Programme "Research, Capacity Building and Advocacy on Trade (ReCAT)". One of the

major focus areas of the programme is farmers' rights, including access and benefit sharing. ReCAT is supported by Oxfam (Novib), the Netherlands.

tion still provides an opportunity for all Parties to review, and as

appropriate, adjust national measures—including seed regulations.

In addition, the Parties of the Treaty, including developing and

least-developed ones, can also capitalize on other decisions made

in the Third Session's resolution for working out strategies needed

to realize farmers’ rights (Box 3).

Future strategiesThe ITPGRFA does not compel all Parties to implement farmers’

rights. Moreover, as seen in the global negotiations, there are

some Parties that do not want other Parties to implement farmers’

rights. Hence, the interests of Parties willing to protect farmers’

rights are at stake. But it is crucial to realize that important reso-

lutions on farmers' rights have already been adopted to help coun-

tries address their national interests. In this regard, capitalizing

on the new resolution adopted at the Third Session of the Treaty's

Governing Body, developing and least-developed countries can

work out the following strategies to protect the rights of their

farmers, and to enable them to benefit from future breeding and

research in agriculture.

Review national measures, including seed regulations; assess

their effectiveness in promoting farmers' rights; and make sure

to adjust them for the realization of farmers' rights.

Generate views and experiences on farmers' rights; and share

them with stakeholders (including media), other countries, and

the Treaty's Secretariat and the Governing Body for required

actions at local, national and global levels.

Work with relevant actors and agencies, including farmers and

their organizations, to organize local and national workshops

on farmers' rights; and support the Secretariat of the Treaty

to effectively convene regional workshops that aim to discuss

national experiences on the implementation of farmers' rights.

Developing and least-developed countries must realize that these

strategic initiatives are the goals of the new resolution on farmers'

rights, and their outcomes could form a basis for an agenda item

of the Fourth Session, to be held in Indonesia in 2011.

Notes1 Drawn from www.aphd.or.th.2 For details of the negotiations on biodiversity, farmers' rights and the

Third Session, see www.planttreaty.org, www.cbd.int,

www.fao.org, www.farmersrights.org, and www.iisd.ca.